Following the commencement of the instant action and a related case by
another Schenectady adult business owner, the Adult Ordinance was again
amended in 2000 (the "2000 Amendment"). The 2000 Amendment was adopted
specifically to address an objection to the 1999 Amendment raised in the
initial complaint in this action. This objection was that the 1999
Amendment failed to provide a sufficient number of receptor sites for
adult uses because it defined "park" to include bicycle and hiking trails
within zones G and H; therefore, the vast majority of sites within zones
G and H were not available to adult uses because of their proximity to
such trails. The 2000 Amendment redefined "park" to exclude bicycle and
hiking trails from the list of protected uses which must be separated
from adult businesses.

Plaintiff alleges that the City unconstitutionally enacted the 2000
Amendment without showing proper justification and/or reliance on any
study, report, or fact-finding. The City denies this allegation and
asserts that it was able to amend the ordinance based on the same study
it relied on as the justification for the 1999 Amendment. Pursuant to an
extension granted by the City's Board of Zoning appeals, plaintiff was
permitted to continue operating its businesses at the current locations
until June 13, 2001. To date, plaintiff's adult businesses remain in
operation at the disputed locations.

III. STANDARD OF REVIEW

A. Preliminary Injunction

In order to grant a preliminary injunction maintaining the status quo
under a zoning ordinance, a court must find that (1) the plaintiff is at
risk of imminent irreparable harm; and (2) the plaintiff has demonstrated
either a likelihood of success on the merits or "sufficiently serious
questions going to the merits to make them a fair ground for litigation
plus a balance of hardships tipping decidedly toward the party requesting
the preliminary relief." Federal Express Corp. v. Federal Espresso,
Inc., 201 F.3d 168, 173 (2d Cir. 2000).*fn5 When the party seeks a
preliminary injunction to protect a constitutional right, however, courts
generally do not require a showing of irreparable harm. See, e.g.,
Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir. 1991) (when
deprivation of rights derives from allegations of a First Amendment
violation, irreparable harm presumptively exists); Huminski v. Rutland
City Police Dept., 221 F.3d 357, 360-61 (2d Cir. 2000).

Plaintiff contends that a preliminary injunction should issue because
it has shown a likelihood of success as to whether the Adult Ordinance,
as amended, impermissibly infringes upon its First Amendment rights,
thereby causing irreparable harm. Moreover, plaintiff argues that the
limited record in this case raises sufficiently serious and difficult
questions which "call for more deliberate investigation." Bukaka, Inc.
v. County of Benton, 852 F. Supp. 807, 811 (D.Minn. 1993).

It is a well-recognized principle of law that the "loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373
(1976). Additionally, the questions raised in this case, which consider
the extent to which the government may legally infringe upon individual
rights, are of a serious and important nature, especially when considered
in light of the compelling "public interest in uphold[ing] [the] First
Amendment rights guaranteed by the Constitution." Playboy Enterprises,
Inc. v. Meese, 639 F. Supp. 581, 587 (D.D.C. 1986). Because plaintiff has
shown a likelihood that the Adult Ordinance violates its First Amendment
rights, and also because plaintiff has shown a serious and immediate
threat of irreparable harm if enforcement of the Adult Ordinance in not
enjoined,*fn6 plaintiff is entitled to a preliminary injunction
preventing the City's enforcement of the Adult Ordinance against it.
See, e.g., Tunick v. Safir, 228 F.3d 135, 137 (2d Cir. 2000); Huminski,
221 F.3d at 360-61.

While it is true that "the [Supreme] Court has not required that a
municipality conduct new studies or produce evidence independent of that
generated by other cities or towns, so long as whatever evidence the
municipality relied upon is reasonably believed to be relevant to the
problem sought to be addressed", Renton, 475 U.S. at 49-50, there must be
some reasonable nexus between evidence relied upon by the City and the
problem allegedly addressed by the amended Ordinance. See, e.g., N.W.
Enterprises, Inc. v. City of Houston, 27 F. Supp.2d 754, 778 (S.D.Tex.
1998) ("[I]n order for an ordinance based on studies of other cities to
be upheld, the city must demonstrate that when adopting the regulations
the city had a reasonable basis for believing that these provisions would
address [the adverse] secondary effects actually and currently
attributable to sexually oriented businesses in the city."); Alameda
Books, Inc. v. City of Los Angeles, 222 F.3d 719 (9th Cir. 2000), cert.
granted, 121 S.Ct. 1223 (2001). The City has submitted no evidence
whatsoever that either the 1999 Amendment or the 2000 Amendment was
designed to address secondary effects of adult businesses within the City
which were not adequately addressed by the initial version of the Adult
Ordinance, or that plaintiff's businesses are responsible for any adverse
secondary effects in their current, grandfathered locations. While the
City claims that the disputed amendments were intended to address only
the secondary effects associated with adult businesses, and are therefore
content neutral, the City has wholly failed to provide any rational
explanation why the elimination of the grandfathering provisions under
the original version of the Adult Ordinance was necessary to accomplish
this objective.*fn7 Notwithstanding the absence of any evidence of
actual secondary effects from the grandfathering of adult businesses
under the Adult Ordinance, the City asserts that it appropriately relied
on the outside study which served as the basis for the 1999 Amendment
when amending its Adult Ordinance. Regardless of the purported reliance
on the above-referenced study, it is clear that the City cannot show that
it "had before it, and considered, evidence that [adverse] secondary
effects still exist and that the city had a reasonable basis for
believing that the new restrictions it enacted would specifically address
these effects." N.W. Enterprises, Inc., 27 F. Supp.2d at 776 (emphasis
added). In light of the fact that the City's actual experience under the
Adult Ordinance demonstrates an absence of evidence of secondary
effects, it simply cannot be said that it was reasonable to conclude that
a study of other communities was relevant to the issue of whether the
grandfathered adult businesses were creating adverse secondary effects
within the City. Accordingly, it is found that there is a substantial
likelihood that the City will not be able to demonstrate that the
eliminating of the grandfathering provision from the Adult Ordinance was
designed to
further the City's interest in ameliorating the secondary
effects of adult businesses within Schenectady. O'Brien, 391 U.S. at
377.*fn8

B. Irreparable Harm

Regardless of the fact that irreparable harm could be presumed on the
instant motion, Huminski, 221 F.3d at 360 (where complaint alleged
deprivation of a First Amendment right, "irreparable harm would have been
presumed on a motion for a preliminary injunction"), it is clear that
plaintiff has made a showing of a substantial and immediate risk of
irreparable harm if the City's enforcement of the Adult Ordinance is not
enjoined.

As the Supreme Court held in Elrod, "[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury." 427 U.S. at 373. It is undisputed that if the City
is permitted to enforce the Adult Ordinance against plaintiff, plaintiff
will be compelled to cease operation of its businesses at locations which
they have occupied for 28 years. Because there is a substantial
likelihood that this harm is directly related to the protected content of
plaintiff's businesses, an injunction is appropriate to preserve the
status quo pending an expedited trial of this matter.

The City argues that plaintiff would merely suffer monetary damages if
the preliminary injunction sought by plaintiff is not granted, and that
plaintiff's harm could therefore be alleviated through monetary payment.
Although the City correctly points out that "purely monetary [harm] [is]
not normally considered irreparable for purposes of granting preliminary
injunctions", the City incorrectly characterizes the nature of the harm
to plaintiff if an injunction is not issued. Regardless of whether or
not plaintiff could be compensated monetarily for the economic harm to
its businesses, it is axiomatic that "any loss of First Amendment
freedoms, even briefly, . . . constitute[s] irreparable [harm]." Lydo
Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1213-14 (9th Cir.
1984). Because the plaintiff has raised substantial questions as to
whether enforcement of the 2000 Amendment will infringe upon its First
Amendment freedoms, the prospect of mere monetary relief is an
inappropriate remedy in the instant case.

Plaintiff has demonstrated the existence of sufficiently serious and
important questions going to the merits, as well as the likelihood of
irreparable harm if a preliminary injunction is not issued. Because it
is in the interest of justice to maintain the status quo pending a final
resolution of this matter on an expedited basis, a preliminary injunction
shall issue.

2. The defendant City of Schenectady and its employees and agents are
enjoined from enforcing the Adult Ordinance, as amended, against the
plaintiff, Erie Boulevard Triangle Corporation, or any of its businesses,
subsidiaries, owners, employees or agents.

IT IS SO ORDERED.

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